Civil Rights Task Force of Northern Nevada
Recall of Legislators and the Removal of Members of Congress from Office
Order Code RL30016
Recall of Legislators and the
Removal of Members of Congress from Office
Updated March 20, 2003
American Law Division
Recall of Legislators and the Removal of Members of
Congress from Office
Under the United States Constitution and congressional practice, Members of
Congress may have their services ended prior to the normal expiration of their
constitutionally established terms of office by their resignation or death, or by action
of the House of Congress in which they are a Member by way of an “expulsion,” or
by a finding that in accepting a subsequent public office deemed to be “incompatible”
with congressional office, the Member has vacated his congressional seat.
Under Article I, Section 5, clause 2, of the Constitution, a Member of Congress
may be removed from office before the normal expiration of his or her constitutional
term by an “expulsion” from the Senate (if a Senator) or from the House of
Representatives (if a Representative) upon a formal vote on a resolution agreed to by
two-thirds of the Members of the respective body present and voting. While there
are no specific grounds for an expulsion expressed in the Constitution, expulsion
actions in both the House and the Senate have generally concerned cases of perceived
disloyalty to the United States, or the conviction of a criminal statutory offense which
involved abuse of one’s official position. Each House has broad authority as to the
grounds, nature, timing, and procedure for an expulsion of a Member. However,
policy considerations, as opposed to questions of authority, have appeared to restrain
the Senate and House in the exercise of expulsion when it might be considered as
infringing on the electoral process, such as when the electorate knew of the past
misconduct under consideration and still elected or re-elected the Member.
As to removal by recall, the United States Constitution does not provide for nor
authorize the recall of United States officers such as Senators, Representatives, or the
President or Vice President, and thus no Member of Congress has ever been recalled
in the history of the United States. The recall of Members was considered during the
time of the drafting of the federal Constitution in 1787, but no such provisions were
included in the final version sent to the States for ratification, and the specific
drafting and ratifying debates indicate an express understanding of the Framers and
ratifiers that no right or power to recall a Senator or Representative from the United
States Congress exists under the Constitution. Although the Supreme Court has not
needed to directly address the subject of recall of Members of Congress, other
Supreme Court decisions, as well as the weight of other judicial and administrative
decisions, rulings and opinions, indicate that: (1) the right to remove a Member of
Congress before the expiration of his or her constitutionally established term of office
is one which resides exclusively in each House of Congress as established in the
expulsion clause of the United States Constitution, and (2) the length and number of
the terms of office for federal officials, established and agreed upon by the States in
the Constitution creating that Federal Government, may not be unilaterally changed
by an individual State, such as through the enactment of a recall provision or a term
limitation for a United States Senator or Representative. Under Supreme Court
constitutional interpretation, since individual States never had the original sovereign
authority to unilaterally change the terms and conditions of service of federal
officials agreed to and established in the Constitution, such a power could not be
“reserved” under the 10th Amendment.
EXPULSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECALL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Constitutional History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Judicial Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Constitutional Amendment; Pro and Con . . . . . . . . . . . . . . . . . . . . . . 10
1 Senators: Seventeenth Amendment, Clause 1; Representatives: Article I, Section 2.
2 Article I, Section 5, cl. 2.
3 See discussion in Deschler’s Precedents of the United States House of Representatives,
Volume 2, Chapter 7, ? 13 (1977), and VI Cannon’s Precedents of the House of
Representatives, ? 65 (1935); note, e.g., United States Constitution, Article I, Section 6.
There is also a “disqualification” provision in the 14th Amendment, Section 3, where a
person may be “disqualified” from holding congressional office for engaging in insurrection
or rebellion against the United States or giving aid or comfort to our enemies after having
taken an oath to support the Constitution. This provision may be used to “exclude,” that is,
not to seat a person elected to Congress for failing to meet the qualifications (see discussion
concerning House “exclusions” and disqualifications, presumptively on 14th Amendment
grounds, of socialist and pacifist Victor Berger of Wisconsin in 1919, and again in 1920,
VI Cannon’s Precedents, ??56-59; also Powell v. McCormack, 395 U.S. 486, 545, n.83
(1969)). Removal of a seated Member on such grounds would still appear to require the
specific action of the relevant House of Congress.
4 U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 800-805 (1995); Cook v. Gralike, 531
U.S. 510, 522-523 (2001); Justice Joseph Story, Commentaries on the Constitution, Vol. I,
? 627 (1883).
Recall of Legislators and the Removal of
Members of Congress from Office
The term of office established in the United States Constitution for a United
States Senator is six years, and for a Representative in Congress, two years.1 Under
the Constitution and congressional practice, Members of Congress may have their
services ended prior to the normal expiration of their constitutional terms of office
by their resignation, death, or by action of the House of Congress in which they sit
by way of an “expulsion,”2 or by a finding that a subsequent public office accepted
by a Member is “incompatible” with congressional office (and that the Member has
thus vacated his seat in Congress).3 Although considered in the Federal Convention
of 1787, there was never a provision adopted in the Constitution for the “recall” of
Members of Congress, and thus no Member has ever been recalled in the history of
the United States. Individual States have never had the authority, and thus could not
have “reserved” such power, to unilaterally change the terms and conditions of
service of federal officials agreed upon and created in the federal Constitution.4 This
report discusses briefly the manner in which a Member of Congress may be removed
from office by “expulsion,” and then examines the issue of recall of legislators.
Members of Congress may be involuntarily removed from office before the
normal expiration of their constitutional terms by an “expulsion” from the Senate (if
a Senator) or from the House of Representatives (if a Representative) upon a formal
5 Brown, House Practice, 104th Cong., 2d Sess., “Voting,” at p. 908 (1996).
6 Cushing, Elements of the Law and Practice of Legislative Assemblies in the United States,
Sections 683-684, at 268-269 (Boston 1856); note also Hiss v. Bartlett, 68 Mass. 468 (1855).
7 Powell v. McCormack, 395 U.S. 486 (1969). See also footnote 3, supra, as to 14th
Amendment disqualification for treasonous conduct.
8 See case of Senator William Blount of Tennessee, expelled on July 8, 1797, and found not
subject to impeachment. III Hinds’ Precedents, ?? 2294-2318 (1907).
9 In addition to actual expulsions, note House Committee on Standards of Official Conduct’s
recommendations for expulsion of a Member for bribery in “Abscam” matter (H.R. Rept.
97-110, 97th Cong., 1st Sess. (1981)), and of another Member after conviction for receipt of
illegal gratuities, Travel Act violations and obstruction of justice (H. Rept. 100-506, 100th
Cong., 2d Sess. (1988)). See also Senate Select Committee on Ethics recommendation in
S. Rept. 97-187, 97th Cong., 1st Sess. (1981), after Senator’s conviction in “Abscam” matter.
It should be noted, however, that the Senate Select Committee on Ethics recommended the
expulsion of a Senator in 1995 who was not convicted of any crime, but who was found by
the Committee to have abused the authority of his office in making unwanted sexual
advances to women, enhancing his personal financial position, and for obstructing and
impeding the Committee’s investigation. S. Rept. 104-137, 104th Cong., 1st Sess. (1995).
vote on a resolution agreed to by two-thirds of the membership of the respective body
who are present and voting.5 The United States Constitution expressly provides at
Article I, Section 5, clause 2, that: “Each House may determine the Rules of its
Proceedings, punish its Members for disorderly Behaviour, and, with the
Concurrence of two-thirds, expel a Member.”
An expulsion is a process, generally inherent in parliamentary bodies, which is
considered to be a self-disciplinary action necessary to protect the integrity of the
institution and its proceedings.6 An expulsion is different from an “exclusion.” An
“exclusion” is not a disciplinary matter against a current Member, but rather a
decision not to seat a Member-elect, by a simple majority vote of the House or
Senate, upon a finding that the Member-elect is not entitled to a seat either because
of a failure to meet the constitutional qualifications for office (age, citizenship and
inhabitancy in the State), or that the Member-elect was not “duly elected.”7
Members of Congress are not removed by way of an “impeachment” procedure
in the legislature, as are executive and judicial officers, but are subject to the more
simplified legislative process of expulsion.8 A removal through an impeachment
requires the action of both Houses of Congress — impeachment in the House and
trial and conviction in the Senate; while an expulsion is accomplished merely by the
House or Senate acting alone concerning one of its own Members, and without the
constitutional requirement of trial and conviction.
An expulsion from the Senate or the House of Representatives is considered the
most severe form of congressional self-discipline. While there are no specific
grounds for an expulsion expressed in the Constitution, expulsion actions in both the
House and the Senate have generally concerned cases of perceived disloyalty to the
United States Government, or the conviction of a criminal statutory offense which
involved abuse of one’s official position.9 In the United States Senate, 15 Senators
have been expelled, 14 during the Civil War period for disloyalty to the Union (one
10 Note expulsions of Senators Mason, Hunter, Clingman, Bragg, Chestnut, Nicholson,
Sebastian, Mitchell, Hemphill, and Wigfall (1861), Breckinridge (1861), Bright (1862),
Johnson (1862), and Polk (1862). The expulsion order regarding Senator Sebastian was
later revoked. United States Senate Election, Expulsion and Censure Cases, 1793-1990, S.
Doc. 103-33, 103d Cong., 1st Sess., at pp. 95-108, Cases 36, 38, 39, 40 (1995).
11 Senator William Blount of Tennessee, July 8, 1797, United States Senate Election,
Expulsion and Censure Cases, 1793-1990, supra at 13-15, Case 5.
12 Representative-elect John B. Clark of Missouri (1861), Representative John W. Reid of
Missouri (1861), and Representative Henry C. Burnett of Kentucky (1861). II Hinds’
Precedents, supra at ?? 1261,1262; House of Representatives Exclusion, Censure and
Expulsion Cases, Comm. Prt., 93rd Cong. 1st Sess. at 143-144 (1973).
13 H.R. Rpt. No. 96-1387, 96th Cong., 2d Sess., In the Matter of Representative Michael J.
Myers (1980), 126 Congressional Record 28,978 (October 2, 1980); H.R. Rpt. No. 107-594,
107th Cong., 2d Sess., In the Matter of Representative James A. Traficant, Jr. (2002), and
H.Res. 495, 107th Cong., 148 Congressional Record H5393, July 24, 2002 (daily ed.).
14 In Senate see, e.g., S. Rept. 97-187, supra, (Senator resigned in 1982 prior to final Senate
floor consideration, Riddick’s Senate Procedure, S. Doc. 101-28, at 270 (1992)); and 1995
resignation of Senator after Committee recommendation of expulsion in S. Rept. 104-137,
supra. In the House, note resignations of two Representatives, one in 1981 and the other in
1988 after Committee recommendations of expulsion in H. Rept. 97-110, supra, and H.
Rept. 100-506, supra; case of Rep. B.F. Whittemore, recommended for expulsion by
Military Affairs Committee for sale of Military Academy appointments, who subsequently
resigned in 1870, and who was then censured in abstentia by the House (II Hinds’
Precedents, supra at ? 1273); and House censure of John DeWeese after his resignation
(also for the sale of Academy appointments), but before the committee reported the
resolution of expulsion. II Hinds’ Precedents, supra at ? 1239. See also expulsion
resolutions, reported from an ad hoc committee, for bribery, and subsequent resignations
during House consideration of resolutions, by Representatives William Gilbert, Frances
Edwards, and Orasmus Matteson, in 1857 (II Hinds’ Precedents, supra at ? 1275).
15 In re Chapman, 166 U.S. 661, 669-670 (1897); United States v. Brewster, 408 U.S. 501,
519 (1972); Story, Commentaries on the Constitution, Vol. II, ? 836 (1883).
expulsion was later revoked by the Senate),10 and one Senator was expelled in 1797
for other disloyal conduct.11 In the House of Representatives, five Members have
been expelled, including three during the Civil War period for disloyalty to the
Union.12 Two other House Members have been expelled, one in 1980 after
conviction of conspiracy and bribery in office, and the other Member in 2002 after
conviction for conspiracy to commit bribery, receiving illegal gratuities, fraud against
the Government in receiving “kickbacks” from staff, and obstruction of justice.13
Although actual expulsions from Congress are fairly rare, it should be noted that
several Members of Congress have chosen to resign from office rather than face what
was apparently perceived as an inevitable congressional expulsion.14
The authority within the Constitution of each House of Congress to expel one
of its own Members is unrestricted on the face of the constitutional language, except
as to the requirement for a two-thirds approval. Although such authority appears to
be extensive as to the grounds, nature, timing, and the procedure for the expulsion
of a Member,15 policy considerations, as opposed to questions of power or authority,
may have generally restrained the Senate and the House in the exercise of their
16 H. Rept. 94-1477, 94th Cong., 2d Sess. 2 (1976), where House Committee on Standards
recommended against expulsion since Member’s conviction “while reflecting on his moral
turpitude, does not relate to his official conduct while a Member of Congress.”
17 Note discussion in S. Rept. 2508, 83rd Cong., 2d Sess. 20-23, 30-31 (1954), concerning
McCarthy censure; and H. Rept. 27, 90th Cong., 1st Sess. 26-27 (1969).
18 Powell v. McCormack, supra at 508, 509; Alexander Hamilton, II Eliot’s Debates 257;
note II Hinds’ Precedents ? 1285, p. 850-852, discussion of jurisdiction of House after reelection
of Member when the “charges against [the Member] were known to the people of
his district before they reelected him.”
19 Report of the House Judiciary Committee, H. Rept. 570, 63rd Cong., 2d Sess. (1914), VI
Cannon’s Precedents of the House of Representatives, ? 398, 557-558.
20 “Congress has demonstrated a clear reluctance to expel when to do so would impinge ...
authority to expel. Such restraint has been particularly evident when the conduct
complained of occurred prior to the time the Member was in Congress,16 or occurred
in a prior Congress, when the electorate knew of the conduct and still elected or reelected
the Member.17 The apparent reticence of the Senate or House to expel a
Member for past misconduct after the Member has been duly elected or re-elected by
the electorate, with knowledge of the Member’s conduct, appears to reflect in some
part the deference traditionally paid in our heritage to the popular will and election
choice of the people.18 In 1914, the Judiciary Committee of the House detailed
various policy considerations in expulsions for past misconduct:
In the judgment of your committee, the power of the House to expel or punish by
censure a Member for misconduct occurring before his election or in a preceding
or former Congress is sustained by the practice of the House, sanctioned by
reason and sound policy and in extreme cases is absolutely essential to enable the
House to exclude from its deliberations and councils notoriously corrupt men,
who have unexpectedly and suddenly dishonored themselves ....
But in considering this question and in arriving at the conclusions we have
reached, we would not have you unmindful of the fact that we have been dealing
with the question merely as one of power, and it should not be confused with the
question of policy also involved. As a matter of sound policy, this extraordinary
prerogative of the House, in our judgment, should be exercised only in extreme
cases and always with great caution and after due circumspection, and should be
invoked with greatest caution where the acts of misconduct complained of had
become public previous to and were generally known at the time of the member’s
election. To exercise such power in that instance the House might abuse its high
prerogative, and in our opinion might exceed the just limitations of its
constitutional authority by seeking to substitute its standards and ideals for the
standards and ideals of the constituency of the member who had deliberately
chosen him to be their Representative. The effect of such a policy would tend
not to preserve but to undermine and destroy representative government.19
The authority to expel has thus been used cautiously, particularly when the institution
of Congress might be seen as usurping or supplanting its own institutional judgment
for that of the electorate as to the character or fitness for office of someone the people
have chosen to represent them in Congress.20
on the electoral process.” Bowman and Bowman, “Article I, Section 5: Congress’ Power
to Expel — An Exercise in Self-Restraint,” 29 Syracuse Law Review 1071, 1101 (1978).
21 G. Theodore Mitau, State and Local Government, Politics and Processes, 90 -93 (Charles
Scribner’s Sons 1966); Comment, “The Use and Abuse of Recall: A Proposal for Legislative
Recall Reform,” 67 Nebraska Law Review 617, 621-625 (1988).
22 II Hinds’ Precedents, supra at ?? 813-815; Remick, The Power of Congress in Respect
to Membership and Elections, Vol. I, pp. 531-532 (1929).
In some States, State legislators and other State or local elected officials may be
removed from office before the expiration of their established terms not only by
action of the legislature itself through an expulsion (or for executive officers, through
an “impeachment” and conviction by the legislature), but also by the voters through
a “recall” election procedure. While an expulsion is an inherent authority of
legislative bodies incident to their general powers over their own proceedings and
members, recall is a special process outside of the legislature itself, exercised by the
people through a special election. Recall provisions for State or local officers
became popular in the “progressive movement,” particularly in the western and plains
States, in the early part of the 20th Century.21
The United States Constitution does not provide for nor authorize the recall of
United States officials such as United States Senators, Representatives to Congress,
or the President or Vice President of the United States, and thus no United States
Senator or Member of the House of Representatives has ever been recalled in the
history of the United States. As early as 1807, a Senate Committee examining the
question of the Senate’s duty and broad authority to expel a Member, noted that such
duty devolves to the Senate not only because of the express constitutional grant of
authority, but also as a practical matter because the Constitution does not allow for
a “recall” of elected Members of Congress by the people or the State. The
Committee noted specifically that the Constitution had set out numerous provisions,
qualifications and requirements for Members of Congress to prevent conflicts of
interest and to assure a certain degree of fealty to constituents, but did not give a
Member’s constituency the authority to recall such a Member:
The spirit of the Constitution is, perhaps, in no respect more remarkable
than in the solicitude which it has manifested to secure the purity of the
Legislature by that of the elements of its composition .... Yet, in the midst of all
this anxious providence of legislative virtue, it has not authorized the constituent
body to recall in any case its representative.22
The recall of United States Senators or Representatives had been considered
during the time of the drafting of the federal Constitution, but recall provisions were
rejected and were not included in the final version of the Constitution sent to the
23 The Articles of Confederation of 1777 had contained a provision for recall of United
States Senators by the state legislatures. Section V stated that the state legislatures would
have “a power reserved in each state to recall its delegates, or any of them, at any time
within the year and to send others in their stead ....” At the Constitutional Convention at
Philadelphia, “Randolph’s Propositions” of May 29, 1787 proposed for recall of popularly
elected representatives, but this was not accepted by the Convention. I Elliot, Debates on
the Adoption of the Federal Constitution, 143-144, 172 (1888).
24 3 Farrand, Records of the Federal Convention of 1787, 173 (Appendix A).
25 II Elliot, Debates on the Adoption of the Federal Constitution, 289 (1888); note also
discussion of state ratifying debate on lack of authority for state recall in the federal
Constitution, in Herbert S. Swan, “The Use of Recall in the United States,” from The
Initiative, Referendum and Recall, National Municipal League Series, (William Bennett
Munro, editor), at p. 298, n.2 (1912).
26 Thomas E. Cronin, Direct Democracy, The Politics of Initiative, Referendum, and Recall,
at 129 (Harvard University Press 1989).
27 202 U.S. 344 (1906).
States for ratification.23 The ratifying process in the States evidences debate over this
lack of inclusion of a recall provision. Luther Martin of Maryland, for example, in
an address delivered to the Maryland Legislature, criticized the proposed Constitution
because the Senators “are to pay themselves, out of the treasury of the United States;
and are not liable to be recalled during the period for which they are chosen.”24 In
New York, an amendment was defeated in the 1788 ratifying convention which
would have allowed the state legislatures to “recall their Senators ... and elect others
in their stead.”25 This history indicates an understanding of the Framers and ratifiers
of the Constitution that no right or power to recall a Senator or Representative from
the United States Congress existed under the Constitution as ratified. As noted by
an academic authority on the mechanisms of “direct democracy”:
The Constitutional Convention of 1787 considered but eventually rejected
resolutions calling for this same type of recall [recall of Senators by the state
legislatures as provided in the Articles of Confederation]. ... In the end, the idea
of placing a recall provision in the Constitution died for lack of support — at
least from those participating in the ratifying conventions. The framers and the
ratifiers were consciously seeking to remedy what they viewed as the defects of
the Articles of Confederation and some of their state constitutions, and for many
of them this meant retreating from an excess of democracy.26
Although the Supreme Court has not needed to directly address the subject of
recall of Members of Congress, other judicial decisions indicate that the right to
remove a Member of Congress before the expiration of his or her constitutionally
established term of office is one which resides in each House of Congress as
established in the expulsion clause of the United States Constitution, and not in the
entire Congress as a whole, nor in the State legislatures through the enactment of
recall provisions. In Burton v. United States,27 the Supreme Court ruled that a
provision of federal law which on its face purported to make one convicted of bribery
“ineligible” to be a United States Senator, could not act as a forfeiture of a Senator’s
28 202 U.S. at 369.
29 U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995); Cook v. Gralike, 531 U.S. 510
30 514 U.S. at 832-835.
31 514 U.S. at 800-802. The Court stated: “As we have frequently noted, ‘[t]he States
unquestionably do retain a significant measure of sovereign authority. They do so, however,
only to the extent that the Constitution has not divested them of their original powers and
transferred those powers to the Federal Government.’ Garcia v. San Antonio Metropolitan
Transit Authority, 469 U.S. 528, 549 (1985); ... see also New York v. United States, 505 U.S.
144, 155-156 (1992).” 514 U.S. at 801-802. (Emphasis in original)
32 514 U.S. at 802.
office, since the only way to remove a Member under the Constitution was by the
Senate exercising its authority over its own Members:
The seat into which he was originally inducted as a Senator from Kansas could
only become vacant by his death, or by expiration of his term of office, or by
some direct action on the part of the Senate in the exercise of its constitutional
The concept that the States do not, individually, possess the authority to change
the terms or qualifications for federal officers agreed upon by the States in the United
States Constitution, has been confirmed by the Supreme Court in modern case law.29
The Supreme Court found in U.S. Term Limits, Inc. v. Thornton, that the authority
of the individual States over the elections of federal officials under Article I, ? 4, cl.
1, is not a broad authority for an individual State to substantively change the
qualifications, length or number of terms of federal officials established within the
United States Constitution.30 The Court in U.S. Terms Limits, Inc. noted that the
States do retain significant sovereign authority in many areas, but that the States
transferred and delegated certain powers and authority to the national government
within the instrument creating that entity, the Constitution. With respect to powers
in relation to the federal, national government, and any powers deriving exclusively
from and because of the existence of that national government, the States must look
to the United States Constitution for grants or delegation of authority to them.31
With respect to the Tenth Amendment and the “reserved” authority of the States,
the Court clearly explained that determining qualifications and terms for federal
offices, created within the Constitution, were “not part of the original powers of
sovereignty that the Tenth Amendment reserved to the States,” and thus whatever
authority States have over the terms, qualifications and elections of federal officers
must be a “delegated” authority from the Constitution.32 Such authority could not be
a “reserved” power of the States, since the States could not “reserve” a power it did
not have as part of its original sovereign authority, that is, a power relative to
something which did not exist before its creation in the Constitution:
Petitioners’ Tenth Amendment argument misconceives the nature of the right at
issue because that Amendment could only “reserve” that which existed before.
As Justice Story recognized, “the states can exercise no powers whatsoever,
which exclusively spring out of the existence of the national government, which
33 514 U.S. at 802. “[A]s the Framers recognized, electing representatives to the National
Legislature was a new right, arising from the Constitution itself.” 514 U.S. at 805; Cook v.
Gralike, supra at 522.
34 531 U.S. at 522.
35 Article I, ? 2, cl. 2, and Article I, ? 3, cl. 3; Members of the House are to be “chosen every
second Year by the People of the several States ....” (Article I, ? 2, cl. 1), and Senators are
chosen for terms of “six Years” each. Article I, ? 3, cl. 1, and Seventeenth Amendment:
“The Senate of the United States shall be composed of two Senators from each State, elected
by the people thereof, for six years ....”; Article I, ? 5, clauses 1 and 2.
36 Members of Congress are federal officials, not State officers, and owe their existence and
authority solely to the federal Constitution. As explained by the Supreme Court:
In that National Government, representatives owe primary allegiance not to the
people of a State, but to the people of the Nation. As Justice Story observed,
each Member of Congress is `an officer of the union, deriving his powers and
qualifications from the constitution, and neither created by, dependent upon, not
controllable by, the states ....’ 1 Story ? 627. Representatives and Senators are
as much officers of the entire union as is the President. 514 U.S. at 803.
37 United States Constitution, Article VI, clause 2. See, for example, with respect to
qualifications for candidates to federal office, Danielson v. Fitzsimmons, 44 N.W. 484
(Minn. 1950)(state law prohibiting felon from running for congressional office found
invalid); Ekwall v. Stadelman, 30 P. 2d 1037 (Ore. 1934); Shub v. Simpson, 196 Md. 177,
76 A.2d 332, appeal dismissed, 340 U.S. 881 (1958), (state statute requiring congressional
candidates to reside in congressional district found invalid.)
the constitution does not delegate to them .... No state can say, that is has
reserved, what it never possessed.” 1 Story ? 627.33
Re-emphasizing this meaning of the Tenth Amendment’s “reserved” authority vis-avis
federal officials, the Court later explained in Cook v. Gralick:
The federal offices at stake “aris[e] from the Constitution itself.” ...
Because any state authority to regulate election to those offices could not precede
their very creation by the Constitution, such power “had to be delegated to, rather
than reserved by, the States.”34
The United States Constitution expressly establishes the exclusive qualifications
for congressional office, sets the specific length of terms for Members of the House
and for Senators, and places the authority within each House of Congress to judge the
elections and qualifications of, and to discipline and remove, its own Members.35
These provisions of the United States Constitution, with respect to federal officials,36
have supremacy over State laws and provisions, and State laws in conflict with such
constitutional provisions have been found by the courts in the past to be invalid.37
Although the language of some State recall laws might be broad enough to include
Members of Congress, or might even explicitly include such federal officers, such
statutes would not appear to be effective in overriding the provisions of the United
States Constitution with regard to terms of office, elections and removal of Members
38 Biennial Report and Opinions of the Attorney General of the State of Oregon 313, (April
19, 1935): “Should this [state] constitutional amendment be so construed as applying to the
recall of a Representative in Congress it would to that extent be inoperative.” If a recall
election for a Member of Congress were actually held under a state provision, it is most
likely that the ultimate effect would be “advisory” only, having perhaps significant political,
but not legal, import.
39 68 Opinions of the Attorney General 140, 146, 148 (Wisconsin 1979): “In the foregoing
discussion I have attempted neither a resolution nor a comprehensive analysis of the
constitutional issue. Enough has been said, however, to show that the question of
constitutionality is one that is arguable and open to debate. The Wisconsin Supreme Court
has provided guidance to administrative bodies called upon to perform their ministerial
duties under circumstances raising doubts as to the constitutional validity of the result. ...
Accordingly, in the event petitions for the recall of a United States senator are presented to
the Elections Board, you should proceed to carry put your responsibilities ... unless and until
directed otherwise by a court of law.”
40 See New York Times, October 1, 1967, p. 47, col. 1.
41 Biennial Report and Opinions of the Attorney General of the State of Oregon 313 (1935).
See also opinion and brief of Senator Walter George, then Chairman of the Senate
Committee on Privileges and Elections, reaching the same conclusion as to the lack of
constitutional authority of a State to terminate or cut short by recall the constitutionally
established term of a United States Senator or Representative, 79 Congressional Record
10688-89 (July 3, 1935).
of the United States Congress,38 and thus, as noted above, no Member of Congress
has ever been recalled in the history of the United States.
In interpreting state recall statutes, the Attorney General of Wisconsin did note
in an opinion on May 3, 1979, that an administrative agency, the state election board,
upon presentation of a valid petition to recall a Member of Congress under the
Wisconsin Constitution, had no authority, in itself, to adjudicate and reject such
petition without a ruling from a court.39 However, in a specific ruling from a court,
a federal court in 1967 dismissed a suit which attempted to compel the Idaho
Secretary of State to accept petitions recalling Senator Church of Idaho. In the
unreported decision, the court found that Senators are not subject to state recall
statutes, and that such a state provision is inconsistent with the provisions of the
United States Constitution.40
In Oregon, the Attorney General similarly ruled in an opinion on April 19, 1935,
that the State’s recall provisions could not apply to a Member of Congress, who is
not actually a State official, but who holds his office pursuant to the United States
Constitution and is a federal constitutional officer. The opinion found that such
recall provisions would interfere with the Congress’ exclusive constitutional
authority over the elections and qualifications of its own members, noting that the
“jurisdiction to determine the right of a representative in Congress to a seat is vested
exclusively in the House of Representatives ... [and] a Representative in Congress is
not subject to recall by the legal voters of the state or district from which he was
Constitutional Amendment; Pro and Con.
For a recall provision to be enforceable against a Member of Congress, it would
appear that a constitutional amendment would need to be adopted by the requisite
number of States authorizing such procedure in the United States Constitution.
Although there has been some call for a constitutional amendment authorizing
national “referenda” or “initiatives,” there has not been significant movement for a
national recall provision.
Supporters of recall provisions see this mechanism as a device to assure regular
and close oversight of elected public officials, and to make elected officials more
continuously, rather than periodically, responsible and responsive to the will and
desires of the electorate. With recall procedures available, it is argued, there is no
need for the electorate to tolerate an incompetent, corrupt, and/or unresponsive
official until that official’s term is over.
Those who oppose recall note that recall petitions generally need only a
relatively small minority of the electorate to force a recall election of an official.
With the threat of a recall election ever present, it is argued that an official may be
deterred from, and penalized for, taking strong and clear political positions that could
offend even a small, but vociferous and active political group. It is contended that
such small special interest or “single-issue” groups might effectively stymie an
official by constantly occupying the official with the potential need to campaign and
run in a recall election. It is also argued that complex governmental programs and
policies may often need to function and to be evaluated in the long run, over time; but
with the threat of immediate recall, Members may be further deterred in supporting
long-term plans and programs for the country which may not bring immediate, shortterm
benefits to constituents.